Savier v. Chipman ( 1848 )

By the court,

Green, J.

In 1846, Chipman sued Savier in a justb ,ce’s court in the county of St. Joseph, and recovered a judgment for $40 damages, and $3 91 costs of suit. Savier, conceiving himself ag? grieved by such judgment, jmade a special affidavit, under the provt sions of section 10 of the act of 1845, Ses. L. 1845, p. 101, and ap.pealed therefrom to the circuit court of the county. The cause was tried by a jury in that-court, at its March term in 184'?, and the plaintiff below obtained a verdict and judgment against the defendant below for $42 45 damages, with costs of suit.

Exceptions were taken on the trial, and a bill of exceptions was setpled and signed, and made a part of tbij record; and the defendant thereupon removed the record into this court by writ of error.

It appears from the bill of exceptions, a motion was made by the appellant in the circuit court to reverse the judgment of the justice, on the ground the return showed the court was held in a bar-room or place $yhere spirituous liquors were sold, and that, therefore, the justice had no jurisdiction; and that the circuit court decided the return did not show that the justice held his court in a bar-room or place where spirituous liquors were sold, and that the question arising upon the return was not one of jurisdiction, but one that should have been taken advantage of, if at all, by plea in abatement, if the facts were disputed, or upon motion to dismiss the action, if the facts were undisputed.

The errors assigned are, that the circuit court erred in denying the motion to reverse for the reasons specified in the bill of exceptions, and also that the justice had no jurisdiction of the case.

The only question involved in the case seems to be, whether the justice’s court, before which the suit was tried, was holden in a bar-room where spirituous or intoxicating liquors were sold. Ses. L. 1842, p. 135.

The justice’s return shows, that on the day of the trial of the cause it was called in the bar-room of a tavern, and adjourned from that room to one adjoining in the some house, but that the justice had no know!» edge that spirituous or intoxicating liquors were sold there, nor was any proof of such fact offered upon the trial. Whatever information the jus* tice acquired upon inquiry afterwards, not having been judicially before him in the case, cannot be regarded here, and shordd not have constituted any part of his return. Such information may have been true, or it may have been false. It comes upon the record without any sanction making it evidence. Excluding, therefore, all that relates to information derived from the keeper of the house or others, after the trial, the return only shows that the tcause was called and adjourned in a barroom, but not that any kind of spirituous or intoxicating liquors were sold there.

If, under the statute then in force relating to taverns, every license to a tavern keeper authorized the sale of spirituous liquors, it would then seem to be a fair legal presumption that such liquors were sold in every ■ bar-BOom of a tavern; but by the revised statutes of 1838, p. 206, see. 23, provision was made for granting licenses to tavern keepers which should not authorize the sale of brandy, rum, or other spirituous liquors' or wines. It cannot, therefore, be presumed, from the mere fact that the room in question was the bar-room of a tavern, that it was a barroom or place where spirituous or intoxicating liquors ioere sold.

This cause having been tried before the justice within the general limits of liis territorial, jurisdiction, and lie having acquired jurisdiction of the cause and of the parties by a regular course of proceeding, any special circumstances which would take away that jurisdiction, ought to appear in the record; and no such circumstances appearing, the judgment of the circuit court mnst be affirmed, with costs to the defendant in error.

Judgment affirmed.